Wednesday, July 23, 2008

No Authority to Prosecute Appeal

Court finds that attorney who filed notice of appeal had no authority to do so. Appeal dismissed for want of jurisdiction.


There is a general presumption that an attorney is acting with authority; however, that presumption is rebuttable. Breceda v. Whi, 187 S.W.3d 148, 152 (Tex. App.--El Paso 2006, no pet.); Kelly v. Murphy, 630 S.W.2d 759, 761 (Tex. App.--Houston [1st Dist.] 1982, writ ref'd n.r.e.); see also City of San Antonio v. Aguilar, 670 S.W.2d 681, 684 (Tex. App.--San Antonio 1984, writ dism'd) ("[A]n attorney who has conducted a case in the trial court is presumed to have authority to pursue an appeal, although this presumption can be rebutted.").

Here, appellees have rebutted the presumption that Bonner had authority to represent Pessarra when she filed the notice of appeal by pointing to the trial court's multiple orders, rulings, and conclusions of law that Bonner was limited in her representation to acting through the court-appointed attorney, Greg Donnell.

The trial court's rulings and orders on this issue make it clear that Bonner does not have authority to file documents with the trial court on Pessarra's behalf, and Bonner did not object to those rulings and orders in the trial court. (6) We conclude that Bonner lacked authority to file a notice of appeal on Pessarra's behalf.

Furthermore, Bonner herself does not have standing to appeal any of the orders establishing Pessarra's guardianship. Standing presents a question of law which we review de novo. See Hairgrove v. City of Pasadena, 80 S.W.3d 703, 705 (Tex. App.--Houston [1st Dist.] 2002, pet. denied).

Standing is implicit in the concept of subject matter jurisdiction. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000). Subject matter jurisdiction is essential to the authority of a court to decide a case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Standing, as a necessary component of a court's subject matter jurisdiction, is a constitutional prerequisite to maintaining suit. Id. at 444.

The standing requirement under Texas law stems from two limitations on subject matter jurisdiction: the separation of powers doctrine and the open courts provision, "which contemplates access to the courts only for those litigants suffering an injury." Id.

Here, Bonner has not shown that she had authority to represent Pessarra as required to appeal on Pessarra's behalf. Nor has she shown either that herself suffered an injury from the trial court's October 25, 2006 orders appointing Chafin as Pessarra's permanent guardian, creating a management trust for Pessarra's estate, approving the final accounting, or granting attorney's fees and expenses to the other lawyers involved in this case. We hold, therefore, that Bonner lacked standing to bring this appeal. See id.

We dismiss this cause for lack of jurisdiction. Because we conclude that Bonner did not have authority to file this appeal and we do not have jurisdiction to consider it, we do not need to address the nine issues raised in her brief. See Tex. R. App. P. 47.1.

Pessarra v. Seidler (Tex.App.- Houston [1st Dist.] July 17, 2008) (Keyes) (probate court, guardianship proceeding, no authority to file appeal)
Opinion by Justice Evelyn Keyes
Panel members: Chief Justice Radack, Justices Keyes and Higley
Appellate cause number: 01-06-01035-CV
Full case style: Tera Pessara v. Frank Wayne Seidler, Kimberly McMillian, Floyd Christian, Jr., Tera Hollie Stowe and Janet Douvas Chafin
Appeal from Probate Court of Brazoria County
Disposition: Dismiss Appeal

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